THE INDUSTRIAL TRIBUNALS

 									CASE REF:	4109/17

CLAIMANT:			Leah McElveen

RESPONDENT:		Chief Constable of the Police Service of Northern Ireland

DECISION
The unanimous decision of the tribunal is as follows:-
1.	The respondent was in breach of the duty to make reasonable adjustments and the claimant’s claim in respect of reasonable adjustments is well founded.
2.	The claimant was not subjected by the respondent to any harassment on the grounds of disability and the claimant’s claim in respect of harassment is therefore dismissed.
3.	The claimant was not subjected by the respondent to any direct discrimination on the grounds of disability and the claimant’s claim in respect of direct discrimination is therefore dismissed.
4.	The respondent is hereby ordered to pay to the claimant the sum of £11,000 together with interest of £942.84 in respect of injury to feelings caused by the respondent’s breach of the duty to make reasonable adjustments.

Constitution of Tribunal:
Employment Judge: 	Employment Judge Turkington
Members:		   	Mr A Carlin
			   	Mr A Barron 

Appearances:

The claimant appeared and was represented by Ms Leonard, Barrister-at-Law, instructed by MKB Law, Solicitors.

The respondent appeared and was represented by Mr J Kennedy, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

The Claim

1.	The claimant’s claim was a claim of disability discrimination, namely direct discrimination on the grounds of disability, failure in respect of the duty to make reasonable adjustments and harassment on the grounds of disability 

The Issues

2.	The agreed issues for the tribunal to determine were as follows:- 

Legal Issues

1.	Disability in relation to the Claimant is accepted.

2.	From what date did the Claimant suffer from a disability pursuant to the Disability Discrimination Act 1995, as amended?

3.	Did the Respondent subject the Claimant to discrimination by way of a failure to make reasonable adjustments contrary to section 4A of the Disability Discrimination Act 1995, as amended?

4.	Did the Respondent subject the Claimant to discrimination by way of less favourable treatment on the grounds of disability contrary to section 4 of the Disability Discrimination Act 1995, as amended?

5.	Did the Respondent subject the Claimant to discrimination by way of harassment on the grounds of disability contrary to the Disability Discrimination Act 1995, as amended?

6.	Who is the Claimant’s comparator?

Factual Issues

1.	What steps did the Respondent take to assess whether the Claimant suffered from a disability pursuant to the Disability Discrimination Act 1995, as amended?

2.	What steps did the Respondent take to assess the Claimant’s capabilities including Occupational Health assessments?

3.	What steps were taken by the Respondent to assess the needs for reasonable adjustment in respect of the Claimant?

4.	What recommendations were made for reasonable adjustments in respect of the Claimant?

5.	Did the Respondent at any point refuse to comply with the adjustments or delay in complying with same?

6.	Did the Respondent comply with the adjustments?

7.	If the answer to 6 is yes, when did the Respondent comply with the adjustments?

8.	If the answer to 5 is yes, what was the effect of any delay/refusal on the Claimant?

9.	Is the adjustment relied upon – not working in PPB – covered by the DDA?

10.	What injury, loss or damage or other remedy is the Claimant entitled to if her claim succeeds?

Contentions of the parties

3. 	(a)  	Counsel for the claimant contended that the claimant was a disabled person from a date earlier than that conceded by the respondent and that the respondent also had constructive knowledge of the claimant’s disability at an earlier date.  In respect of reasonable adjustments, she argued that the duty had arisen before the claimant’s return to work and that the respondent had failed to comply with the duty largely due to the delay in implementing the required adjustment.  Counsel further suggested that the claimant had been subject to direct discrimination compared to her named comparators and to an incident of harassment.  It was argued that the claimant had suffered financial loss arising from her decision to reduce her hours which was alleged to be substantially due to the respondent’s treatment of her.  Finally, in respect of injury to feelings, the claimant’s counsel contended that compensation should be at the top of the middle band of Vento.

(b)	Counsel for the respondent contended that the required adjustment had been made in the case of the claimant and that an alternative position was being sought from an early stage.  He argued that there had been no breach of the duty to make reasonable adjustments and emphasised various adjustments which had been made to facilitate the claimant in returning to work, such as a phased return as well as reduced hours.  Counsel also referred to numerous posts which had been considered for the claimant prior to her eventual move to the HOLMES team.  In relation to the claim of direct discrimination, counsel argued that there was no case to answer on this.  As regards the claim of harassment, it was contended that the tribunal should take into account the context in which the impugned remarks were made.  It was denied that the claimant had suffered any relevant financial loss and, if the tribunal found that there had been any discrimination, counsel suggested that compensation for injury to feelings should be in the bottom band of Vento. 

Sources of Evidence

4.	The tribunal read witness statements from the claimant and from Deirdre Bones, Anne Marks, Angela McKernin, Ryan Henderson, Lyn McClure and Joanne Franceschini on behalf of the respondent.  Oral evidence was also given by Tracey Mageean on behalf of the respondent.  Each of these witnesses attended the hearing and were cross examined by the other party.  

5.	In the course of the hearing, the tribunal was also referred to a number of documents in the agreed tribunal bundle.  
Findings of Fact

6.	Having considered the evidence given by all the witnesses and the content of relevant documents referred to by the parties along with the submissions of counsel for both parties, the tribunal found the following relevant facts:-

(1)	The claimant is employed by the respondent as a police constable.  Her employment began on 27 June 2004.  Initially, the claimant worked as a Domestic Abuse Officer.  From around February 2016, the claimant transferred within Public Protection Branch (PPB), also known as C7, to the Child Exploitation team.  PPB is one of the Branches within the Crime Operations Department of the respondent.

(2)	On 20 June 2016, the claimant went on sick leave due to significant stress in her personal life which led to severe anxiety.  The claimant informed her Inspector of the significant stress factors in her personal life.

(3)	In July 2016, the claimant was hospitalised due to severe undiagnosed abdominal pain.  On 31 July 2016, the claimant nevertheless attempted to return to work.  However, she was unable to stay in work as her physical symptoms had increased and she went on sick leave again on 12 August 2016.

(4)	On 12 August 2016, a referral was made by the claimant’s line manager Sergeant McCormill to the respondent’s Occupational Health and Welfare Department (OHW) which stated that the claimant “is undergoing investigative procedures for symptoms of illness - query gastro illness.  This is having an effect on her ability to be in the workplace due to pain and discomfort.  [she] also has family issues which is causing her some stress and she may value some support and input from OHW re coping strategies”.

(5)	This referral to OHW also sought answers to some specific questions as follows:-

“Is this person suffering from a recognised medical condition? Please respond – yes

……………………………………..

Is the employee likely to be considered disabled within the meaning of DDA?  Please respond – yes”.

It was clear at the hearing that there had been some confusion regarding the           content of this referral.  The claimant had understood that the word “yes” as completed on the document indicated that OHW had answered the question regarding DDA with a positive answer “yes”.  However, the tribunal is satisfied that the respondent’s characterisation of this document is correct.  Indeed, in light of the evidence at the hearing, the claimant’s counsel conceded in her submissions that the claimant’s initial understanding had been incorrect.  The tribunal therefore accepts that this was a template form which was completed by the referring manager to indicate which of the standard questions OHW were required to complete.  In this case, the referring manager, that is the claimant’s Sergeant, stated “yes” to indicate that she required an answer to the question whether the claimant was likely to be considered disabled within the meaning of the DDA.  The word “yes” where it appears on this form was not an indication that OHW considered the claimant to be disabled.  

(6)	The question to OHW in relation to disability was not answered at this stage.  OHW recorded a note on the respondent’s HR system (SAP) on 21 September 2016, following the claimant’s first OHW appointment, which stated that the claimant “is currently unfit due to a genuine debilitating medical condition and major family stressors which are affecting her both physically and mentally.  …………. I will make a referral for her to receive specialist support and have arranged a review appointment …………..”.  The claimant had agreed to avail of CBT counselling.  

(7)	During the Autumn of 2016, the claimant was also admitted to hospital on 3 occasions and was eventually diagnosed with a serious physical illness which was linked to the stress she was suffering.  The claimant eventually underwent major abdominal surgery on 1 December 2016.  In addition, the family situation which had led to the claimant having to commence sick leave in the summer of 2016 was ongoing and this continued to impact on the claimant’s mental health. 

(8)	On 7 November 2016, DCI Marks and DI McDonald conducted a welfare visit to the claimant at home.  The claimant outlined the family issues she was dealing with and the impact on her mental health.  The claimant indicated that she was suffering from “extreme anxiety” for which she was receiving medication.  The claimant also connected this to the physical medical condition from which she was suffering and for which she was waiting for surgery.  DCI Marks enquired about how this impacted on the claimant’s quality of life and the claimant indicated that she “didn’t really have a life” and rarely got out.  

(9)	The claimant had major abdominal surgery in December 2016.  On 21 December 2016, Supt Bones and DCI Marks visited the claimant at home for a welfare visit.  These senior officers did not have access to the claimant’s records on SAP.  During the visit, the claimant shared with these senior officers the ongoing very difficult family situation which was continuing to cause her stress and was impacting her mental health.  Both senior officers were sympathetic to the position the claimant found herself in and it was agreed that there was no immediate prospect of the claimant returning to work. 

(10)	In the course of the CBT counselling arranged by OHW, the claimant disclosed to her counsellor some very significant traumatic events which had occurred in her childhood.  After a few weeks, the counsellor discussed with the claimant her current role in the Child Sexual Exploitation Team.  The counsellor advised that this role was potentially detrimental to the claimant’s recovery.  The claimant agreed with this recommendation and the counsellor sought permission to discuss the claimant’s disclosures with the OHW nurse to allow appropriate recommendations to be made prior to the claimant’s return to work.  It was agreed between the relevant health professionals that the claimant should not return to a role involving exposure to child abuse and trauma. 

(11)	On 25 January 2017 and following the claimant’s attendance at OHW, the OHW nurse updated the claimant’s record on SAP as follows:-

“[The claimant] attended OHW at Garnerville today.  She has now had her surgery and is recovering fairly well but is not fit for any duties as yet.  As you are aware she has been attending for specialist support which is proving challenging and both my colleague and myself are of the opinion the area the officer is working in is obstructing her recovery and is not conducive to her mental or physical health.  It would be recommended a meeting is arranged to discuss any opportunities for a transfer to an alternative role out of PPB completely”. 

The tribunal considers that OHW in recommending a meeting intended this to be a meeting involving the claimant.  This view is reinforced by the reference to this suggested meeting in the later OHW entry dated 22 March 2017 which makes it clear that this meeting should have included the claimant. 
 
(12)	The record on SAP was accessible only to the claimant’s sergeant and her inspector, but not to more senior officers.  However, on the same day as the entry was made, that is 25 January 2017, the claimant’s inspector forwarded the entire SAP entry by email to Supt Bones and DCI Marks.  The inspector added “I am aware that there are a number of moves in the offing.  Could the comments of OHW be considered with a view to moving Leah to a more suitable post.  In turn I will require a further vacancy declared in CSE Belfast.”  DCI Marks in turn forwarded this email the next day to Acting Supt Tracey Mageean who had responsibility within the branch for resourcing.  At this stage, no one in the claimant’s line management structure raised any queries with OHW or the claimant regarding the record on SAP.   

(13)	In addition to the SAP records/notes, the respondent’s processes also included a Duty Adjustments screen which allowed any requirements for adjustments to be recorded.  At this stage, despite the recommendations made by OHW on 25 January 2017 and the claimant’s physical limitations following major surgery, no Duty Adjustments screen was in place for the claimant.

(14)	On 13 February 2017, the claimant’s case was discussed at a meeting along with around a dozen other cases involving officers who required for various reasons to be transferred out of C7 branch.  This meeting was attended by Acting Supt Tracey Mageean, who had responsibility for resourcing matters within the branch, Lyn McClure HR, Eric Thompson, Resourcing and an HR Administrator.  No one from the claimant’s direct line management structure was present at this meeting, including those who had attended welfare visits to the claimant’s home.  Prior to the meeting, the only information which Acting Supt Mageean had access to was a cut and paste of the SAP entry dated 25 January 2017.  The focus at the meeting was on the final sentence of this entry which referenced the need to move the claimant out of PPB/C7.  At this stage, no duty adjustment screen had been completed by OHW in respect of the claimant.  The evidence of Lyn McClure, HR was that very specific support was available within the respondent’s organisation to identify a solution once OHW advise that the provisions of the DDA apply.  At this stage, there was no such advice in the case of the claimant.  The conclusion from the discussion of the claimant’s case at the meeting was that the claimant should be offered a post in local policing team (LPT), that is front line policing, in either Lisburn and Castlereagh or Antrim.  

(15)	On 16 February 2017, the following entry was made on SAP by OHW:

“…. [the claimant] is making a steady recovery from her surgery and if a suitable role could be identified she would be fit to return to work at the end of February.  She will require ongoing support ……….. She is keen to know what her new role is and the uncertainty is causing her anxiety. ………………”.

(16)	Following the meeting on 13 February, since the claimant’s Inspector was not available, the other inspector in C7, Angela McKernin was asked by Tracey Mageean to contact the claimant to make the offer of the post in LPT.  DI McKernin telephoned the claimant on 24 February 2017.  The claimant was very distressed and shocked by this call as she considered that the offer made to her was completely unsuitable.  This was the offer of a post working in frontline policing were the claimant could be exposed to trauma and immediate contact with the victims of sexual abuse, which were the areas which the OHW recommendations covered.  In addition, the claimant had recently undergone major surgery and she felt it should have been obvious that she would have physical restrictions in the short term.  

(17)	Following this telephone call, Angela McKernin sent an email to Tracey Mageean in which she indicated that the claimant did not believe that a role in LPT would be beneficial to her recovery.  DI McKernin also outlined that the claimant’s understanding was that she should not be in a role dealing with victims or exposing her to traumatic events.  The claimant felt that a role in LPT did not meet these criteria.  The last few lines of the SAP entry made by OHW on 25 January 2017 were also set out once again.  Having had a discussion with the OHW nurse, DI McKernin also noted that OHW states this is not a suitable post for the claimant because she had recently had surgery and therefore had physical restrictions.  In addition, from a psychological standpoint, the role is unsuitable as it would expose the claimant to the very situations she needs to avoid in order to aid her recovery.  It was further confirmed that none of the existing roles in PPB were suitable for the claimant. 

(18)	On 24 February 2017 and following contact from Angela McKernin, OHW completed a duty adjustment screen for the claimant.  This screen stated that adjustments applied (backdated) from 16 February to 31 July 2017 and “DDA applies – No”.  A number of temporary short term restrictions are then outlined.  These were essentially restrictions relating to, for example, the claimant’s ability to run, use physical force in restraint and to wear body armour following on from her surgery.  This screen contains no reference to the claimant’s mental health condition.  The tribunal believes it is clear that the reference made by OHW on this duty adjustment screen to DDA not being applicable relates only to the short term physical restrictions outlined on this screen which were applicable following the claimant’s surgery.  The fact that this screen referred only to these short term physical restrictions is unfortunate and did not assist the claimant’s line management or HR to see the full picture regarding the claimant’s condition.  

(19)	In late February 2017, following the offer of a role in LPT, the claimant was anticipating a return to work shortly.  In discussion with her partner, who                                                                                                                                              is also a police officer, the claimant then concluded that she had no alternative but to make a member of senior management aware of the very sensitive nature of the disclosures that she had initially made to her counsellor.  The claimant’s partner then approached Supt Bones, who had attended the welfare visit with the claimant in December 2016.  Without disclosing specific details, the claimant’s partner made Supt Bones aware of matters in the claimant’s past. 

(20)	Supt Bones immediately contacted DCI Mageean by email indicating that the claimant had genuine reasons for no longer being able to work in C7 but without going into specific details.  Supt Bones asked DCI Mageean to action this.

(21)	On 27 February 2017, the claimant sent an email to Supt Bones in which she outlined her difficult personal circumstances and mental health problems which had led to the recommendation from OH that she should not return to her role in C7.  She explained her surprise and upset at being offered a role in a local policing team.  The claimant apologised for having contacted Supt Bones directly, but explained that she did so because Supt Bones was fully aware of her circumstances and in a position of influence.  Supt Bones forwarded this email promptly to Lyn McClure in HR and asked Ms McClure to contact her to discuss this. 

(22)	On 1 March 2017, approximately 5 weeks after the SAP entry made by OHW on 25 January, the claimant was signed off by her GP as fit to return to work.  She then took 2 weeks annual leave.  The claimant was due to return to work on 15 March.  The respondent was aware of the claimant’s proposed date for her return to work from 16 February from the update placed on SAP by OHW.  At this stage, the claimant had not been informed where she would be working on her return. 

(23)	On 3 March 2017, there was a further meeting between Acting Supt Mageean and Lyn McClure of HR.  At this stage, Lyn McClure suggested short term options in other branches within the Crime Operations Department, for example, Crime Operations CTC or Operations Planning.  It was accepted that a role in LPT was not suitable for the claimant. 

(24)	The claimant was aware of a colleague who had been working in a temporary role in Priority Based Resourcing in Holywood.  This colleague was due to leave around this time and the claimant felt this role would suit her restrictions even if it was only available on a temporary basis.  The claimant therefore contacted the sergeant of the department who appeared willing to facilitate the claimant.  However, this post was not available for the claimant. 

(25)	On 15 March 2017 having taken 2 weeks annual leave, the claimant returned to work on a phased return in accordance with OHW advice.  The claimant had to phone DI McKernin to check where she should report to.  Ms McKernin confirmed that the claimant should report to her old station and continue to work in PPB.  In the first instance, DI McKernin advised the claimant to work initially on her personal administration, catching up with emails etc.  The claimant was taken off her old role in Child Sexual Exploitation.  However, the claimant returned to her own desk within that department.  It was DI McKernin’s evidence that she offered the claimant a desk on the 4th floor to avoid her being exposed to any trauma and that the claimant declined this offer.  The claimant denied this.  The tribunal was not able to fully resolve this conflict in the evidence, but believes that this does not significantly impact on the matters to be determined by the tribunal.

(26)	Around this time, DCI Mageean asked DI McKernin if she thought a role as a property manager in RCU may be suitable for the claimant.  DI McKernin did not feel that it was.  DCI Mageean nevertheless asked DI McKernin to explore this role.  The outcome of this exploration was that without the relevant training, there would be limited opportunity for the claimant.

(27)	On her return to PPB/C7, the claimant was initially assigned to work with the analysts.  Shortly after she began this work, the claimant felt ill and became very distressed at the mention of the word “rape”.  The claimant went to see DI McKernin to explain that she would not be able to do that work.  DI McKernin was understanding and immediately removed the claimant from that work.  

(28)	The claimant was then assigned to a piece of work with the analysts which involved surveys regarding the understanding of officers and staff relating to Child Sexual Exploitation.  Whilst the claimant found this work emotional and difficult, she persevered with it in the continuing hope that she would be moved shortly.

(29)	On 21 March 2017, Lyn McClure contacted the claimant’s line management.  Since the various temporary options she had suggested previously had not proved successful, she suggested other options such as RADAR, property management and research with the analysts.  Line management confirmed that the latter had been tried and had not worked out.  

(30)	On 22 March, the claimant attended OHW following which the OHW nurse updated SAP as follows:-

“[The claimant] attended for review in Garnerville today.  She appears to be making good recovery following her recent surgery.  OHW support continues for ongoing personal issues.  I understand that [she] has returned to work in an adjusted role in C7 however continuing to work in this area is proving to be detrimental to her health and wellbeing.  From information received today and also from my OHW support colleague it is my opinion that if [the claimant] is allowed to refrain from work involving exposure to trauma this will prove to be beneficial to her recovery.  In agreement with my colleagues recommendations on 25/01/2017 I would strongly recommend that a meeting between [the claimant], HR and line managers to discuss a suitable transfer will also prove to be beneficial to her recovery and sustainability at work. …. A review is planned for 4 weeks.”

(31)	The same day, the claimant’s sergeant put a note on SAP asking OHW what restrictions they were classing as permanent as HR can only seek a transfer if there is a permanent duty restriction.  This question was asked in the context of both the claimant’s recuperation from her surgery and the restrictions regarding her mental health and wellbeing – trauma.  This was the first time since the initial referral in August 2016 than line management had raised any query with OHW regarding the claimant’s mental health condition or her “DDA status”. 

(32)	The next day, 23 March 2017, the claimant was told that HR would not be able to facilitate a permanent move for her unless she had a diagnosis and a permanent duty adjustment was advised.  

(33)	On 24 March 2017, OHW responded to the questions asked by the sergeant.  The response was as follows:-

“………. Please note my comments above are recommendations and are written based on my professional opinion ………… The adjustments on the duty adjustment screen are temporary adjustments relating to Leah’s physically (sic) condition.  Permanent adjustments are applied by Medical Advisers.  I understand that you require further information …………….I have also made referral to OHW Specialist.  ……………”

(34)	Arrangements were made for the claimant to be examined by a Consultant Psychiatrist Dr McGarry.  He examined the claimant on 4 April 2017 and his report is dated 12 April.  In his report, Dr McGarry confirmed that the claimant presents with symptoms characteristic of Post-Traumatic Stress Disorder.  He further confirmed that, due to her psychiatric condition, it is not appropriate for the claimant to continue working in her current post with victims of sexual abuse.  

(35)	DCI Mageean asked DI McKernin to speak to the claimant to ask if she felt a role in Rape Crime Unit Property Store would be suitable.  Ms McKernin did not believe this role was suitable and was surprised when the claimant indicated a willingness to consider the role.  When DI McKernin explained in further detail what the role would involve, the claimant agreed that it would not be suitable. 

(36)	In its response form, the respondent outlined that the claimant had broken the seal on an envelope containing photographs which contained images which were liable to cause distress to her.  DI McKernin and the claimant gave conflicting evidence on this matter.  On balance, the tribunal found the claimant’s account to be more credible, that is that she had not broken the seal on the envelope and looked at these photos.  The tribunal also noted that, whilst the evidence of DI McKernin was that the clamant had directly contravened orders in this regard, this conduct had not been subject to investigation or any disciplinary action.  

(37)	Following her commencement as an HR Partner to PPB/C7 on 1 April 2017, Joanne Franceschini began looking for temporary roles for the claimant.  This was because, at that time, it was understood that the claimant did not have a “permanent disability” and was subject to short term duty restrictions only.  Ms Franceschini was in regular and direct contact with the claimant at this time, which was unusual for an HR Partner.  A digital download of available vacancies in the organisation was furnished on a monthly basis and could have been consulted more regularly if necessary.  In an organisation of the size and complexity of the respondent, the available vacancies and those employees requiring to be moved changed on a virtually daily basis. 

(38)	On 3 May, the OHW nurse placed an entry on SAP in which she said:

“As you are aware, she remains under the care of her GP and Specialist for her current condition.  Following assessment today there has been no improvement in [her] condition and it is my opinion that this will not change until [she] has been moved from her current post.  Following assessment with Specialist it is his opinion that it is not appropriate for [the claimant] to continue working in her current post with victims of child abuse.  I have recommended to [the claimant] that she negotiates with HR, line manager to help to get this move in progress”.

(39)	On 4 May 2017, Joanne Franceschini HR Partner phoned the claimant and told her that HR were close to finding a temporary role for the claimant and it could be as soon as that day.  This potential role was in Operational Planning, Crime Operations Department.  Ms Franceschini indicated that Eric Thompson in Police Resourcing was involved in this.

(40)	On 5 May and having heard nothing further, the claimant emailed Eric Thompson asking if she would hear anything soon.  Mr Thompson replied that Ms Franceschini was dealing with the matter.  The claimant was left feeling frustrated and disappointed that it appeared her situation was being passed around from one person to another and no one appeared to be taking responsibility.  The tribunal understands and sympathises with the frustration the claimant was experiencing at this time. 

(41)	On 8 May 2017, a further duty adjustment screen was completed.  This stated “DDA applies – Yes”.  A free text box was also completed by Dr Humphries which stated “I have reviewed the specialist notes.  She is unfit for traumatic exposure or contacts particularly but not exclusively sexual abuse for the next 12 months.  This will be reviewed and if necessary made permanent at that time.  My advice is to assume DDA is applicable.”  At this stage, the short term duty adjustments screen outlining the physical adjustments required post-surgery also remained in place.  This continued to state “DDA applicable – No”.  This reaffirms the tribunal’s view that OHW’s assessment of DDA not being applicable is related to these specific short term physical duty adjustments only.  Since there were 2 duty adjustments screens in place at the same time, those involved in dealing with the claimant’s situation either from line management or HR would need to view both screens in order to have the full picture regarding the claimant’s required adjustments. 

(42)	On 9 May, the claimant was not in work.  She asked her Sergeant to ask Ms Franceschini to contact the claimant on her mobile phone.  Joanne Franceschini  explained to the claimant that she was seeking a temporary transfer for the claimant as Ms Franceschini had not yet seen the duty adjustment screen completed by Dr Humphries the previous day.  In the course of seeking to explain the definition of disability under the DDA, Ms Franceschini made reference to certain conditions which are deemed to be a disability at the point of diagnosis such as cancer and contrasted this with the legal position regarding other conditions which must meet the statutory definition of disability.

(43)	On 10 May, the Crime Operations Planning Branch confirmed that they did not have a temporary role for the claimant.  The same day, the claimant contacted Supt Ryan Henderson to ask for a meeting with a senior manager to discuss her health and her role.  Supt Henderson was concerned about the claimant and arranged to meet her the next day.  At this meeting, the claimant felt that she had no alternative but to disclose to Supt Henderson once again the details of the traumatic events during her childhood and to explain again why continuing to work in C7 was not helping her recovery.  The claimant was distressed at having to disclose this sensitive information again.  The claimant expressed her frustration with the delay and that it appeared the absence of a diagnosis and permanent DDA restriction was preventing a move.  The claimant informed Supt Henderson that she was then going on a period of annual leave and he viewed this as an opportunity to bring himself up to speed with her case.  

(44)	It was clear from Supt Henderson’s evidence that he was empathetic to the claimant’s position and that he sought to act promptly to address this.  Immediately after his meeting with the claimant, he contacted Joanne Franceschini HR Partner who reassured him that she was doing her best to find a suitable post for the claimant. 

(45)	On 15 May 2017, Ms Franceschini enquired about a vacancy for a Transport Driver based at Seapark.  Ms Franceschini made some preliminary enquiries regarding the role and whether the claimant’s temporary adjustments could be facilitated.  Details of this role were passed to the claimant on 19 May and she attended Seapark on 22 May to meet with the manager.  The manager began by asking the claimant if she was a lorry driver and when she replied that she was not, this manager indicated that the claimant was of no use to him.  The claimant was left very upset and disappointed by this and suffered a panic attack on her way home.

(46)	In May 2017, the claimant decided to reduce her hours in work from the usual full time hours of 40 hours per week to 32 hours per week.  The claimant’s evidence was that this was due to a number of factors, including the alleged discriminatory treatment following her return to work, but also her family responsibilities.  The claimant has continued to work 32 hours per week up to the date of the tribunal hearing.  Having carefully considered all the relevant evidence on this point, the tribunal finds as a fact that the main or primary factors in the claimant’s decision to reduce her hours were matters other than the alleged discriminatory treatment, particularly family reasons.

(47)	On 23 May 2017, the claimant sent an email to various senior officers, namely Supt Henderson, DCI Mageean, DI McDonald and Joanne Franceschini and Eric Thompson from HR.  Essentially, this email was a “cry for help” arising from the claimant’s frustration and despair that her situation had still not been resolved.  The claimant concluded by saying that she was planning to take a period of sick leave. 

(48)	Upon receipt of this email, Supt Henderson was concerned about the claimant and contacted her immediately.  She had not left work and Supt Henderson asked the claimant to meet him.  The claimant was clearly upset at this time.  Supt Henderson sought to reassure the claimant about the efforts that Joanne Franceschini was making to find a suitable post for her.  The claimant did not in fact go on sick leave at that stage. 

(49)	Following confirmation that the driver role at Seapark was not suitable for the claimant, Joanne Franceschini liaised with various departments to try to identify a suitable role for the claimant.  

(50)	On 31 May, the claimant contacted Supt Henderson once again by email.  He was surprised and relieved to learn that she was still in work rather than on sick leave and asked to meet the claimant the next day. 

(51)	On 1 June 2017 and at the suggestion of Supt Henderson, Joanne Franceschini asked to meet the claimant.  The tribunal was somewhat surprised to note that this was the first time since the welfare visit in December 2016 that the respondent had proactively asked to meet the claimant directly to discuss her situation.

(52)	On 15 June, the claimant received an email confirming that a suitable role had been found for her in the HOLMES team which was part of another branch within the Crime Operations Dept and that she could begin in this role immediately.  This post would normally have been based in Armagh, but Joanne Franceschini asked for an adjustment to be made so that the claimant could work from a base much closer to the claimant’s home.  The claimant was delighted to be offered this role and has continued in this post working 32 hours per week up to the date of hearing.  It was confirmed by Joanne Franceschini in evidence that it was very likely that this role would have been available at an earlier stage.

(53)	In relation to the claim of direct discrimination on the grounds of disability, the tribunal found the following facts:-

(a) 	Donna Carson was moved from PPB/C7 in October 2016 following an OHW recommendation that she be redeployed out of that Branch.  Ms Carson transferred internally within Crime Ops Dept into a vacancy that was available at the relevant time and indeed Ms Carson had applied for this post.  Ms Carson was not considered to be covered by the DDA.

(b)	Nikki Deehan had temporary restrictions in place following an RTA which could not be accommodated locally.  She was transferred to Crime Ops CTC.  The Assistant Chief Constable had requested temporary assistance pending a more permanent solution.  A temporary vacancy was available at the time.  This officer was later appointed to the post permanently following a successful application.  Ms Deehan was considered to be covered by the DDA.

Statement of Law

7.	Disability

7.1	The statutory definition of disability and disabled person is set out in section 1 of the Disability Discrimination Act 1995 (as amended) (“the DDA”) and Schedule 1 of the Act.  The statutory definition is as follows:-

“1. 	Meaning of “disability” and “disabled person”

(1)		Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act …………..if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2)		In this Act ……………..“disabled person” means a person who has a disability.”

7.2 	In the case of Goodwin v Patent Office 1999 IRLR 4, which has been upheld on numerous occasions since, the Employment Appeal Tribunal emphasised that each of the 4 limbs of the statutory test must be considered separately.  Further, the EAT emphasised that a purposive interpretation is to be given to the legislation.

7.3	Generally, in its judgment in the case of SCA Packaging v Boyle HL UKHL 37 2009, the House of Lords held that, where it is used in any part of the statutory definition of disability, the term “likely” must be interpreted as meaning  “could well  happen”.

7.4	Taking each of the 4 elements of the statutory definition of disability in turn:-

(1)	The disabled person must have a physical or mental impairment which can include mental ill health.  It was confirmed in the case of McNicholl v Balfour Beatty [2002] IRLR 711 that the term “impairment” is to be given its ordinary and natural meaning.

(2)	The impairment must have an adverse impact on ability to carry out day to day activities.  In the case of Rayner v Turning Point UKEAT/0397/10/ZT the EAT confirmed that refraining from work can be a day to day activity.  Further, it has been clarified that day to day activities can include career related exams and assessments – see Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763.  The impairment must affect one of the specified areas set out in Schedule 1 of the DDA.  Those specified areas which tend to be most relevant to mental health related impairments tend to be memory or ability to concentrate  - Sched 1 para 4 (1) (g).

(3)	The next element of the statutory test is that the effect of the impairment must be substantial.  In the cases of Vicary v BT PLC [1999] IRLR 680 and Leonard v South Derbyshire CC [2000] UKEAT 789_99_1905, the EAT clarified that the term “substantial” in this context means simply “more than minor or trivial”.  

(4)	Finally, the effect of the impairment must be long term, that is an impairment which has lasted at least 12 months or is likely to do so or is likely to recur.  Further, Schedule 1 para 6 (1) of the DDA sets out how a tribunal should consider an impairment for which a claimant is receiving treatment or therapy:- 

“An impairment which would be likely to have a substantial adverse effect on the ability [of the claimant] to carry out normal day to day activities, but for the fact that measures are being taken to treat….it, is to be treated as having that effect”. 

In other words, the effect of treatment should effectively be left out of account when the tribunal is considering an impairment in respect of which the claimant is receiving treatment or therapy, save where the treatment is likely to cure the impairment completely.  In the case of Fathers v Pets At Home EAT/0424/13/DM, the EAT noted that in cases of depression, it is probably a matter of common sense that anti-depressants and counselling will alleviate the condition. 

8. 	Date at which disability is to be considered

8.1	In this case, the respondent conceded that the claimant was disabled at the date when the claim was lodged (14 June 2017).  The tribunal presumes this concession was made on the basis of the OHW assessment of the claimant on 8 May 2017 that DDA should be assumed.

8.2	In McDougall v Richmond Adult Community College [2008] IRLR 227, the English Court of Appeal decided that the date when the tribunal is required to consider whether the claimant met the definition of disability is the date of the alleged act of discrimination or the first of such acts.

9.	Duty to make reasonable adjustments

9.1 	The duty on employers to make reasonable adjustments for disabled employees is set out in section 4A of the DDA as follows:-

“4A Employers: duty to make adjustments

(1)	Where -

(a)	a provision, criterion or practice applied by or on behalf of an employer, or

(b)	any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

9.2	The EAT provided guidance to tribunals on how they should approach the issue of reasonable adjustments in the case of Environment Agency  v  Rowan [2008] IRLR where the EAT stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustment must identify:-

“(a)	the provision, criterion or practice applied by or on behalf of an employer; or

(b)	the physical feature of premises occupied by the employer; or

(c)	the identify of non-disabled comparators (where appropriate); and

(d)	the nature and extent of the substantial disadvantage suffered by the claimant.  It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the ‘provision, criterion or practice applied by or on behalf of the employer and the physical feature of premises’, so it would be necessary to look at the overall picture.”

	The EAT also stated:-

“In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process.  Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable.  It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person concerned at a substantial disadvantage.”

9.3	The issue of substantial disadvantage was further considered in the case of Royal Bank of Scotland v Ashton 201 ICR 632 where Langstaff J stated that:-

“An Employment Tribunal – in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination – must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled”. 

9.4	The breadth and extent of the duty to make reasonable adjustments was demonstrated in the case of Archibald v Fife Council 2004 UKHL 32.  In its judgment, the House of Lords stressed the positive nature of the duty which may be required in recognition of the particular needs of disabled people and confirmed that an employer may be obliged to positively discriminate in favour of disabled persons.  In that case, the House determined that the duty included transferring the claimant to another position within the respondent’s organisation for which she was suited without the need for her to undergo a competitive selection process.  

9.5	The Equality Commission for Northern Ireland’s Disability Code of Practice Employment and Occupation states at page 143 that the employer should consult the disabled person at appropriate stages about what his or her requirements are.  Further, the Code states that if there are no reasonable adjustments which would enable the disabled employee to continue in his or her present job, the employer must consider whether there are suitable alternative positions to which she or he could be redeployed. 

10.	Burden of Proof

10.1	Section 17 (A) (1) of the DDA states that where a disabled person proves facts from which a tribunal could conclude in the absence of an adequate explanation that the respondent had acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act. 

10.2	In Igen Ltd (formerly Leeds Careers Guidance) and Others  v  Wong; Chamberlin Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2005] IRLR 258, the Court of Appeal of England and Wales set out detailed guidance, which is well known, in an Annex to the judgment on the interpretation of the statutory burden of proof provisions in cases of sex, race, and disability discrimination.

This guidance can be summarised as stating that the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination.  The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found.  Such inferences can include inferences that it is just and equitable to draw from relevant matters such as evasive or equivocal replies to statutory questionnaires, a failure to comply with any relevant Code of Practice, or from failure to furnish relevant documents by way of discovery or to call an essential witness.

10.3 	If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent.  To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on the grounds of disability.  The tribunal must determine whether the respondent has provided an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that disability was not a ground for the treatment in question.  Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will normally expect cogent proof to discharge the burden of proof.  

10.4 	In later cases, it has been clarified that the tribunal does not always have to strictly follow a two-stage process, so that in deciding whether the claimant has made out a prima facie case the tribunal may take into account other evidence, including evidence from the employer.  (See: Laing  v  Manchester City Council [2006] IRLR 748 EAT; Madarassy  v  Nomura International Ltd [2007] IRLR 246; and Arthur  v  Northern Ireland Housing Executive and Anor [2007] NICA 25.)

10.5 	These issues were considered more recently by the Northern Ireland Court of Appeal in Curley  v  Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8 and Nelson  v  Newry & Mourne District Council [2009] NICA 24.  In the Curley case, Coghlin LJ stressed the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination).  This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case.

10.6 	In relation to the duty to make reasonable adjustments, the burden of proof was considered in the case of Project Management Institute  v  Latif [2007] IRLR 579.  Harvey on Industrial Relations and Employment Law summarises this decision as follows:-

“… [T]he EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove that it complied with the duty.  There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible … for claimants to propose reasonable adjustments on which they wished to rely at any time up to and concluding the … hearing itself.”

Further, in the case of Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664 the EAT suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made. 

10.7 	It is generally recognised that the duty to make reasonable adjustments includes a duty to make such adjustments reasonably promptly – see for example the decisions of tribunals in England and Northern Ireland respectively in Duckworth v British Airways 2012 and Angela McCracken v Northern Health and Social Care Trust 2013. 

11.	Respondent’s knowledge

11.1 	The issue of the requirement for knowledge on the part of the employer is set out in sub-section 3 of section 4A of the DDA in the following terms:-

“(3)	Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

(a) 	……………..

(b)	in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

11.2 	It has been confirmed by various cases that there are 2 parts to this question – firstly, whether the employer knows or ought reasonably to know that the person has a disability and, secondly, whether the person is likely to be placed at a substantial disadvantage etc - see for example Wilcox v Birmingham CAB Services Ltd UKEAT/0293/10.

11.3 	The employer should take reasonable steps and should have systems in place to establish the relevant information.  In Gallop v Newport City Council [2013] EWCA Civ 1583, the Court of Appeal held that the employer was wrong to have unthinkingly followed an occupational health adviser's opinion that an employee was not disabled.  While occupational health assessments or other medical advice may be helpful, the Court made clear that a responsible employer must ultimately apply its own mind to the test for deciding whether an employee is disabled under the discrimination legislation.  The Court also made it clear that the required knowledge is of the facts of the employee's disability.  The employer does not need to also realise that those particular facts meet the legal definition of disability.

11.4 	By contrast, in Donelien v Liberata UK Ltd [2018] EWCA Civ 129, the Court of Appeal upheld the previous decisions of a tribunal and the EAT that an employer did not acquire constructive knowledge of an employee's disability as it had taken reasonable (but not exhaustive) steps to ascertain whether they were disabled.  The employer had not just "rubber stamped" an occupational health report that stated that the employee was not disabled: it had asked further questions of its occupational health advisers, held "return to work" meetings with the employee and considered correspondence received from her GP.  The Court of Appeal held that, when viewed as a whole, the employer's actions were sufficient to avoid having constructive knowledge of the employee's disability.

12. 	Can the duty to make reasonable adjustments be triggered before the employee is fit to return to work?

12.1 	In this case, it was contended on behalf of the respondent that the duty to make reasonable adjustments could not arise before the claimant was fit to return to work.  A number of cases have held that an employer was under no duty to make adjustments (such as implementing a phased return to work or a change in duties) because there was no return to work date on the horizon.  However, these cases have made it clear that this will turn on the particular facts of the case and there is no absolute rule that a return date must be specified for the duty to arise. Nevertheless, it appears from these cases that claimants may find it difficult to establish any breach of duty where there is not yet any prognosis of a possible return to work, even with adjustments being made.  The cases relevant to this point include the following:-

In Home Office v Collins [2005] EWCA Civ 598, the Court of Appeal held that part-time work was not a reasonable adjustment where an employee was not ready or able to return to work. 

Applying Collins in NCH Scotland v McHugh UKEATS/0010/06, the EAT held that it was reasonable for the employer to wait until the employee could give an expected return date before pursing the possibility of a phased return with her.  The employee had been absent for three years.  She had been unwilling and/or unable to return to work and medical opinion never consistently supported an ability to return to work.  The duty had not been triggered by the time the employee resigned. The EAT concluded that adjustments should be arranged in advance and not in a vacuum.  However, it would not be reasonable for an employer to pursue available options until there was "some sign on the horizon" that the employee would be returning.  Further, additional costs should not be incurred to counteract the effect of the environment on the disabled person in advance of a clear indication that the employee would be returning. 

By contrast, in London Underground Ltd v Vuoto UKEAT/0123/09, the duty to make reasonable adjustments was engaged even though there was no clear return date.  The EAT confirmed that Collins does not establish a principle that the duty to make adjustments arises only once an employee indicates when they will be able to return to work.

13.	Direct discrimination on grounds of disability

13.1 	Section 3A (5) of the DDA states as follows:-

“A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”

13.2 	It has been established that there are two elements in direct discrimination, firstly, the less favourable treatment and secondly, the reason for that treatment – see Glasgow City Council v Zafar 1998 IRLR 36.  However, in the leading case of Shamoon v Chief Constable of the RUC 2003 UKHL 11 at paras 7 & 8.  Lord Nicholls said that “sometimes the less favourable treatment issue cannot be resolved without, at the same time deciding the reason why issue”.  Further, in his judgment in the case of Nagarajan v London Regional Transport 1999 IRLR 572, Lord Nicholls observed that the reason why is the crucial question.

13.3 	In this context, the House of Lords confirmed in the case of Chief Constable of West Yorkshire v Khan 2001 UKHL 48 that less favourable treatment is to be given a wide definition to include any disadvantage and the test is substantially the same as for detriment.

13.4 	In the case of High Quality Lifestyles Ltd v Watts 2006IRLR 850, it was determined that the relevant comparator is a person who does not have the particular disability of the claimant, but whose relevant circumstances are the same as, or not materially different from those of the claimant.

14. 	Harassment on grounds of disability

14.1 	Section s3 B of the DDA sets out the definition of harassment on the grounds of disability:-

“Meaning of “harassment”

(1)	For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of –

(a) 	violating the disabled person’s dignity, or

(b) 	creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) 	Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”

14.2 	It is clear that there is no requirement for a comparator in cases of harassment.  The tribunal must focus on the treatment of the claimant and not on any comparison with the treatment of a comparator.  

14.3 	In Warby v Wunda Group PLC [2012] UKEAT 0434_11_2701, the EAT held that in cases of alleged harassment, the caselaw requires the tribunal to have regard to the context in which words were spoken.  Further, in Richmond Pharmacology v Dhaliwal 2009 IRLR 336 Underhill J (as he then was) emphasised at paras 13 – 15 of his judgment that where a claimant unreasonably took offence, then even if she did genuinely feel that her dignity had been violated, there would not be harassment.  It is for the tribunal to take account of all the relevant circumstances, including the context of the conduct in question. 

15. 	Quantum

15.1 	There are three broad bands of compensation of injury to feelings which are:-

(a)	The top band should normally be between £18,000 and £30,000 (as uprated for inflation).  Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.  Only in the most exceptional case should the award of compensation for injury to feelings exceed £30,000.

(b)	The middle band between £6,000 and £18,000 (as uprated for inflation) should be used for serious cases, which do not merit an award in the highest band.

(c)	Awards of between £500 and £6,000 (as uprated for inflation) are appropriate for less serious cases, such as where the act of discrimination is isolated or a one-off occurrence.  In general, awards of less than £500 are to be avoided altogether as they risk being regarded as so low as not to be a proper recognition of injury to feelings (Vento  v  Chief Constable of West Yorkshire (No 2) [2003] IRLR 102 CA as amended by Da’Bell  v  NSPCC [2010] IRLR 19 EAT De Souza v Vinci Construction (UK) Ltd EWCA Civ 879).

Conclusions

16. 	The tribunal applied the relevant principles of law to the findings of fact set out above in order to reach the following conclusions.

Disability and the respondent’s knowledge

17.  	Firstly, the tribunal gave detailed consideration to the statutory definition of disability and the question of the date from which the claimant was a disabled person.  The tribunal considered this alongside the issue of when the respondent had actual or constructive knowledge of the claimant’s disability.  The respondent had conceded that the claimant was a disabled person at the date on which the claim was lodged, that is 14 June 2017 and OHW had expressly advised that the respondent should “assume DDA” on 8 May 2017.  The issue in dispute was whether the claimant was a disabled person and whether the respondent had actual or constructive knowledge of this at an earlier date. 

18. 	It was common case that the claimant’s disability is PTSD consequent upon childhood trauma.  The claimant contended that she was a disabled person and that the respondent had constructive knowledge of her disability at a date earlier than the date at which the respondent’s Medical Adviser had indicated “assume DDA is applicable” which was on 8 May 2017.  In line with the case of McDougall v Richmond Adult Community College referred to at para 8.2 above, the tribunal decided that the relevant date at which this question should be determined is the date of the first alleged failure on the part of the respondent, in this case, at or shortly after 25 January 2017 when OHW made the first relevant entry on SAP.

19. 	The tribunal analysed the factual information which was available to the respondent as of the end of January 2017 which could be of relevance to the question of disability.  In this regard, the tribunal noted that various officers of the respondent and OHW were aware of the following relevant pieces of information at this date:-

(1)	The claimant had gone on sick leave in June 2016 – reason given as significant stress in her personal life leading to severe anxiety.

(2) 	The claimant had returned to work for a short period at end of July 2016, but was unable to sustain this.

(3) 	The OHW referral completed by the claimant’s line manager dated 12 August 2016 refers to “family issues causing stress and may value some support and input from OH re coping strategies”.  At this stage, the claimant’s line manager asked OHW whether the claimant was disabled.  OHW did not answer this question and line management did not pursue an answer to this question until March 2017. 

(4)	An OHW note dated 21st September 2016 states “currently unfit due to a genuine debilitating medical condition and major family stressors affecting her physically and mentally.  Referral for specialist support”.  The reference to specialist support was in relation to the claimant’s mental health condition. 

(5) 	In the Autumn of 2016, the claimant had a diagnosis of serious physical illness (severe reflux) linked to stress.  Surgery was planned which eventually took place in December 2016.

(6) 	Also in the Autumn of 2016, whilst attending counselling/therapy arranged for her by OHW, the claimant made disclosures to her counsellor/therapist of very serious traumatic events in her childhood.

(7) 	In September 2016, the claimant was unfit to sit her T1 exam due to her medical condition.

(8)	At the welfare visit conducted by DCI Marks in November 2016, the claimant was noted as suffering from “extreme anxiety” for which she was receiving medication.  When DCI Marks enquired about how this impacted on the claimant’s quality of life, the claimant indicated that she “didn’t really have a life” and rarely got out.  

(9) 	At a further welfare visit conducted by DCI Marks and D Supt Bones in December 2016, the claimant shared with these senior officers the ongoing very difficult family situation which was continuing to cause her stress and was impacting her mental health.  

(10) 	On 25 January 2017 OHW posted an entry on the claimant’s SAP records.  This made reference to specialist support which had been proving challenging (at this time, the claimant’s counsellor/therapist had, with the claimant’s permission, passed the full details of the traumatic events in the claimant’s childhood on to OHW and it was this information which formed the basis for this SAP entry).

(11) 	The claimant’s line managers were aware that she was attending for weekly counselling/therapy throughout the period from the Autumn of 2016 onwards and she was unfit for work throughout this period. 

20. 	The tribunal was mindful of the guidance in the Gallop case that the knowledge required by the employer is of the facts of the employee’s disability.  As at the end of January 2017, taking each of the 4 elements of the definition of disability in turn, the tribunal considered whether each of these elements was satisfied in the case of the claimant on the basis of the relevant factual information available to the  respondent:-

(1) 	In relation to the issue of impairment, the respondent through its various officers and OHW were aware of all of the relevant facts outlined at para 19 above.  In considering the overall picture which emerges from this information, the tribunal has concluded that the claimant was suffering from a mental impairment and that the respondent was aware that the claimant had such an impairment. 

(2) 	In respect of the issue of adverse impact on the claimant’s ability to carry out day to day activities, the respondent was aware that the claimant was unfit for work – see para 7.4.2 above, albeit the tribunal recognises that in the Autumn of 2016 and prior to her surgery in December 2016, the claimant was also suffering from a linked physical illness.  Since the claimant’s mental health condition was the probable cause of her physical condition, the tribunal does not consider it necessary to separate the respective effects of the elements of the claimant’s condition.  The respondent was also aware that the claimant was unfit to sit her T1 exam – see 7.4.2.  The claimant had made DCI Marks aware of the impact of her condition, that is that she felt she had no life and was unable to go out.  Taking account of all of these aspects of the impacts of the claimant’s condition, the tribunal believes it is clear that there was an impact on the claimant’s ability to carry out normal day to day activities and that the respondent through DCI Marks, OHW and other officers were aware of this.

(3) 	The effect of this impact must be substantial in the sense of more than minor or trivial.  In this case, considering the cumulative impact of the facts outlined at para 19 above, the tribunal believes that the impact of the claimant’s mental impairment was clearly more than minor or trivial and these were all facts which were within the respondent’s knowledge.

(4) 	Finally, the tribunal addressed the question whether the claimant’s condition was long term which is expected to last at least 12 months.  By January 2017, the claimant had been off work for approximately 7 months.  She had been undergoing counselling for approximately 4 months with that counselling proving challenging coupled with the disclosure to OHW in January 2017 of the nature and extent of the childhood trauma suffered by the claimant.  The tribunal fails to see why the trauma suffered by the claimant would stop impacting on her mental health within a period less than 12 months.  In considering these facts, the tribunal believes that by the end of January 2017, the respondent through its OHW department did have knowledge of facts which clearly pointed to a condition the impact of which was likely to last at least 12 months, particularly when the alleviating effect that treatment or therapy may have is left out of account. 

21. 	The tribunal therefore determined that, at the end of January 2017, each of the 4 elements of the statutory definition of disability was met in the claimant’s case, and so the claimant was a disabled person at that stage.  Further, the respondent through its officers and OHW did have knowledge of facts which showed that the claimant’s condition met each of the 4 elements of the statutory definition of disability.  Accordingly, the tribunal concluded that the respondent should be treated as having constructive knowledge of the claimant’s disability at that date. 

What steps were taken by the respondent to assess the claimant’s capabilities and the need for reasonable adjustments?

22. 	The first relevant referral to OHW was made by the claimant’s line manager on 12 August 2016.  In this referral, OHW was expressly asked to confirm whether the claimant was likely to be considered disabled within the meaning of the DDA.  OHW did not answer this question and this was not chased up by line management at that stage.  An entry was made on the claimant’s SAP record on 25 January 2017 by OHW, but at that stage no comment was made regarding disability and no clarification was sought by line management on this point.  A duty adjustments screen was completed in February 2017 regarding the temporary physical duty restrictions which arose following the claimant’s surgery.  This screen indicated that DDA was not applicable, but the tribunal concluded, as outlined at para 6 (18) above, that this indication related only to these short term adjustments and not to the claimant or specifically her mental impairment.  Again, no clarification was sought by line management.

23. 	It was not until 22 March 2017, some 7 months after the initial request in August 2016, that line management sought further clarification on this issue when the claimant’s sergeant submitted a further request to OHW.  It was this that led to the specialist assessment by Dr McGarry whose report in turn led to the indication on 8 May 2017 that it should be assumed that DDA was applicable.  The tribunal was of the view that the respondent’s approach to this matter had fallen short of the standard referred to in the caselaw, that is whether the respondent had taken reasonable steps to ascertain whether the claimant was a disabled person.  Line managers had failed to seek clarification in relation to the claimant’s condition or its impacts at the end of January 2017 and in the middle of February 2017 when OHW made a further entry on SAP.  OHW had also failed to complete a duty adjustments screen on either of those occasions in relation to the claimant’s mental health condition. 

Duty to make reasonable adjustments

24. 	The tribunal then proceeded to consider each aspect of section 4A of the DDA in order to determine whether and when the duty to make reasonable adjustments arose in this case.

25.  	Firstly, the tribunal considered whether there was a relevant provision, criterion or practice (“PCP”) applied by the employer.  In this case, the tribunal had little hesitation in concluding that the PCP which was of relevance in this case was the requirement for the claimant to (continue to) work in PPB/C7 with the attendant potential for exposure to trauma such as sexual abuse and rape.

26. 	Secondly, the tribunal considered whether the PCP in question placed the claimant at a substantial disadvantage compared to persons who are not disabled.  In this case, there was clear professional advice from the respondent’s OHW department from the end of January 2017 onwards that continuing to work in PPB/C7 was not conducive to the claimant’s mental wellbeing and indeed could obstruct her recovery.  The tribunal considers there can be little doubt that the risk to the claimant’s mental health and wellbeing along with the potential to obstruct her recovery and/or undermine the beneficial effect of the counselling/treatment she was receiving amounted to a substantial disadvantage.

27. 	Next, the tribunal examined who were the relevant comparators in this context.  As set out above, the relevant comparators are the non-disabled group who are not disadvantaged by the PCP in question.  In this case, the tribunal determined that the relevant comparators were those non-disabled officers of the respondent who can continue to work in PPB/C7 without this having a significant adverse effect on their mental wellbeing.  Such comparators were not placed at any disadvantage by being required to continue working in PPB/C7 as there was no acknowledged heightened risk of harm to their mental health as a result.

28. 	It was then necessary for the tribunal to consider s 4 (A) (3) of the DDA relating to the issue of the respondent’s knowledge which is referred to at para 11 above and the two issues which arise from this sub-section.  Firstly, whether the employer knew or ought reasonably to have known that the claimant had a disability at the relevant time.  As set out at para 21 above, the tribunal has concluded in this case that the respondent ought reasonably to have known that the claimant was a disabled person at or shortly after the end of January 2017.  Secondly, whether the employer knew that the claimant was likely to be placed at a substantial disadvantage.  In this case, the claimant’s line management had been clearly warned by the respondent’s own OHW department at the end of January 2017 and on a number of occasions thereafter that continuing to work in PPB/C7 was potentially harmful to the claimant’s mental health and could obstruct her recovery.  That being the case, the tribunal was of the view that the respondent clearly knew that the claimant was likely to be placed at a substantial disadvantage by a continuing requirement for her to work in PPB/C7. 

29.  	Therefore, on the basis of this analysis, the tribunal concluded that the duty to make reasonable adjustments in this case potentially arose at or shortly after the end of January 2017 because at that time the respondent ought reasonably to have known that the claimant had a disability and that she was likely to be placed at a substantial disadvantage by a requirement to continue to work in PPB/C7.

When did the duty to make reasonable adjustments arise?

30. 	However, there was a dispute between the parties as to whether the duty can arise whilst a claimant is absent from work and before a confirmed date of return.  The tribunal reviewed the relevant caselaw set out at paras 11.2 above and noted that no principle has been established that the duty only arises once an employee indicates that they will be able to return to work.  Rather each case turns on its own facts.  In this case, the tribunal notes that the claimant’s counsellor had expressly sought permission to pass on information regarding her disclosures to OHW precisely to allow appropriate recommendations to be made (and presumably actioned) before her return to work – see para 6 (10) above.  Once they had been made aware of those disclosures, the tribunal believes that OHW clearly thought it was important to warn the claimant’s line management at the end of January 2017, in preparation for the claimant’s return to work, that the claimant should not return to work in PPB/C7 because of the potential harm this could cause.  The tribunal considers that OHW were at some pains to seek to emphasise the seriousness of the situation and the potential harm to the claimant such as by their description of the specialist support as “proving challenging”, the reference to obstructing the claimant’s recovery and to the need for a transfer out of PPB completely.  The tribunal firmly believes that it was OHW’s intention to give early warning of these matters to allow the respondent to take steps in anticipation of the claimant’s return to work.  

31.  	Therefore, the tribunal considers it is entirely appropriate for it to reach the conclusion in this case that the duty to make reasonable adjustments did arise in anticipation of the claimant’s actual return to work in line with the clear intentions of the respondent’s own OHW department.  The tribunal also notes that the respondent was fully aware of the claimant’s anticipated date of return to work from the OHW entry made on 16 February 2017.  At the very latest, the tribunal considers that the duty had clearly arisen at that date. 

What reasonable adjustments should have been made?

32.  	In this case, the adjustment which was suggested by OHW was a transfer of the claimant out of PPB/C7.  This was in fact the adjustment which was ultimately made by the respondent.  The tribunal has no doubt that this transfer was the required adjustment in this case and that this was entirely reasonable in the circumstances, particularly since it is a type of adjustment which is expressly included in the Equality Commission’s Code of Practice.

When did the respondent make the required adjustment?

33. 	The claimant’s transfer was implemented around the middle of June 2017.  The respondent moved quickly to redeploy the claimant to alternative work once the claimant was expressly recognised (or labelled) by OH as likely to be disabled.  It was clear to the tribunal from all the evidence in the case, particularly the evidence of the HR witnesses, that the respondent’s processes were such that they moved into a different gear once the label of “DDA” was effectively applied to a particular employee.

When should this adjustment have been put in place?

34. 	On the basis of the facts found, and the principle that reasonable adjustments should be made reasonably promptly once the duty has arisen, the tribunal determined that the required adjustment, that is the transfer out of PPB/C7 was not made reasonably promptly in this case.  This adjustment could and should have been put in place for the claimant’s return to work from sick leave, that is 15 March 2017.  There was a period of 7 weeks between the OHW entry made on 25 January and the claimant’s return to work.  It is the tribunal’s view that, in light of the respondent’s constructive knowledge of the claimant’s disability and the issue of substantial disadvantage from the end of January, the respondent could and should have taken proactive steps to ensure the redeployment of the claimant so that she did not have to return to work in PPB/C7 directly contrary to the professional advice of the respondent’s own OHW department.  It is clear from the efficacious manner in which Joanne Franceschini was able to deal with the matter once the DDA label was applied, finding a suitable redeployment opportunity for the claimant within 5 weeks, that these steps could have been taken just as effectively from the end of January thus avoiding the claimant having to return to work in PPB/C7.  It was particularly telling that Joanne Franceschini conceded in her evidence that it was likely that the role in HOLMES into which the claimant was ultimately redeployed would have been available at an earlier date. 

Burden of proof

35.  	The tribunal applied the approach suggested in the Tarbuck case as set out at para 10.6 above.  It concluded that the required adjustment could reasonably have been made at an earlier date as outlined above.  Therefore, in this case, the burden of proof shifted to the respondent to show why the adjustment had not been made at an earlier date.  There was some evidence given by the respondent of difficulties in implementing the required adjustment for the claimant, such as in identifying a suitable position into which the claimant could be redeployed along with the wider difficulties facing the respondent as a result of the large numbers of officers requiring redeployment out of PPB/C7.  

36.  	However, the tribunal was of the view that this was insufficient to provide an explanation for the respondent’s failure to make the required adjustment promptly.  In particular, this evidence from the respondent was largely contradicted by the indication by Ms Franceschini that it was likely that the role in HOLMES into which the claimant was ultimately transferred would have been available earlier and by the speed at which the respondent was able to address the claimant’s needs once she had been labelled as “DDA”.  In conclusion, the tribunal does not believe that the respondent provided sufficient evidence to provide a reasonable explanation to excuse its failure to implement the required reasonable adjustment at an earlier date.

Conclusions in relation to reasonable adjustments

37.  	For the reasons outlined above, the tribunal has concluded that the respondent failed in its duty to make reasonable adjustments in this case.  Whilst the respondent eventually arranged the required transfer of the claimant out of PPB/C7, the tribunal considers that the timing of this transfer was in breach of the duty to make reasonable adjustments reasonably promptly.  In this case, in the tribunal’s opinion, this transfer could and should have been arranged in time for the claimant’s return to work on 15 March 2018.  

Harassment on Grounds of disability

38.  	The claimant’s claim of harassment on the grounds of disability related to comments made to her by Joanne Franceschini during a telephone conversation on 9 May 2017.  As set out at para 6 (42) above, these comments were made in the context of Ms Franceschini seeking to explain to the claimant matters relating to the statutory definition of disability.  The tribunal can understand that, at that particular time, the claimant was very frustrated by the apparent lack of urgency on the part of the respondent to find a suitable redeployment opportunity for her.  The tribunal also understands the claimant’s perception of the respondent’s response to her mental health condition and her need to be moved out of PPB/C7.  Accordingly, the tribunal believes that the comments made were somewhat insensitive in the circumstances. 
 
39.  	However, the context in which the comments were made was an attempt to explain the statutory definition of disability and, in particular, the contrast between those conditions which are automatically deemed to be a disability upon diagnosis and those conditions where each element of the definition has to be satisfied.  In light of the caselaw outlined above which indicates that context is highly relevant to issues of harassment, the tribunal has concluded that in this particular context, the comments made did not constitute harassment of the claimant on grounds of her disability.  Further and in the alternative, the tribunal believes that the claimant unreasonably took offence at these comments.  

Direct discrimination on the grounds of disability

40.  The tribunal considered carefully the statutory provisions relating to direct discrimination on the grounds of disability and the relevant caselaw.  The requirement for a comparator whose circumstances, including their abilities, is not materially different from those of the claimant was noted.  The tribunal was presented with limited evidence regarding the circumstances of the identified comparators.  Having found the limited facts set out at para 6 (53) above, the tribunal considered that it did not have sufficient evidence to allow it to determine the respective abilities of the comparators.  The tribunal therefore concluded that the claimant had failed to prove sufficient facts in order to shift the burden of proof to the respondent in respect of direct discrimination.  Accordingly, the tribunal determined that the claim of direct discrimination was not well founded. 

Quantum

41. 	As set out above, the tribunal has found in favour of the claimant in respect of the respondent’s failure to make reasonable adjustments in a timely manner once that duty arose.  The tribunal then had to review whether the claimant had suffered any financial loss as a result of this failure. 

42.  	The claimant decided to reduce her hours from 40 hours per week to 32 hours per week in May 2017.  It was contended by the claimant that the respondent’s treatment of the claimant significantly contributed to this decision.  The claimant has decided to continue working these reduced hours even following her transfer to the HOLMES team and up to the date of the tribunal hearing, even though her evidence was that she was happy in this work.  Having carefully considered the claimant’s evidence on this point, the tribunal has concluded that this decision to reduce her hours was wholly or mainly due to other factors, not least the claimant’s caring responsibilities to her children and other members of her family.  Accordingly, the tribunal holds that the claimant has not suffered any financial loss which flows from the respondent’s failings in respect of reasonable adjustments.

43.  	The tribunal then considered the appropriate compensation for injury to feelings.  The tribunal took into account the claimant’s witness statement, in particular paragraphs 40 and 41, the claimant’s oral evidence to the tribunal and indeed her evident distress at times during the hearing.  From the facts found by the tribunal, there were a number of occasions when the claimant was reported to have been upset or distressed in the period immediately before and following her return to work in PPB/C7  - see for example paras 6 (16), (21),  (27 & 28), (40), (43, (45), (47) & (48) above.  OHW clinical notes confirm the anxiety and low mood suffered by the claimant as a result of the uncertainty regarding her return to work and what her role would be.  The clinical notes also confirm the distressed state the claimant was in as a result of the work with the analysts referred to at para 6 (27) above.  The tribunal believes that the claimant suffered severe distress as a result of being forced to continue to work in PPB/C7 despite clear OHW advice that this was potentially harmful.  This situation continued for 3 months from March to June 2017.   The claimant also had to repeat her disclosures regarding childhood trauma to different officers of the respondent which caused further severe distress. 

44.  	Having considered carefully the relevant evidence in relation to injury feelings, the tribunal considered the Vento bands and decided that the appropriate compensation in this case fell into the mid-range of the middle Vento band.  Accordingly, the tribunal has decided that the appropriate figure for compensation for injury to feelings in this case is £11,000.

Interest on injury to feelings award

45.	Interest at the rate of 8% is potentially payable from the date of the act of discrimination, that is from the date on which the respondent discriminated against the claimant by failing to put in place a reasonable adjustment – see the Industrial Tribunals (Interest on Awards in Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.

	The tribunal has determined that the relevant reasonable adjustment should have been in place by the date of the claimant’s return to work, that is 15 March 2017.  The tribunal has calculated interest up to the first day of hearing, namely 10 April 2018.

	The tribunal therefore awards interest at the rate of 8% on the award for injury to feelings of £11,000.00 from 15 March 2017 to 10 April 2018 (391 days):-

                     391        x          8%      x          £11,000.00                =                      £942.84
                               365 

            Interest of £ 942.84 is therefore payable.

Concluding comments

46.  	This was a case where the tribunal felt that the claimant had been let down by the disjointed and at times rather rigid nature of some of the respondent’s systems and procedures.  For example, welfare visits were carried out by senior officers who did not have access to all relevant records, including OHW/SAP records.  At times, those taking decisions did not have access to all relevant information.  The potential disconnect between SAP records and duty adjustment screens was not particularly helpful in ensuring that those dealing with the claimant had all relevant information.  Further, it was clear that the respondent’s processes very much turned on whether or not there was an indication from OHW that an officer should be considered disabled.  This carried the risk, which occurred in this case, of an employee slipping through the net.

47.  	The claimant’s situation was ultimately resolved and therefore the tribunal is not required to make any formal statutory recommendations for the benefit of the claimant.  However, the tribunal would suggest informally that the respondent should review the concerns which emerge from this decision and consider appropriate enhancements to its systems and procedures relating to reasonable adjustments.

48.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.

Employment Judge:

Date and place of hearing:  10, 11, 12 and 13 April 2018, Belfast	.

Date decision recorded in register and issued to parties: